Florida Creates Mini-TCPA with Adjustments to Florida Telemarketing Act

Just when companies thought they were done dealing with the onslaught of lawsuits filed under the TCPA, the Florida legislature has unanimously passed CS/SB 1120. This bill updates the Florida Consumer Protection Law and the Florida Telemarketing Act and creates what is basically another version of the TCPA, including a private right of action. 

These updates are significant and would go into effect July 1st, 2021, absent a veto from Governor DeSantis. Companies should evaluate these changes and be prepared to adjust outbound calling and texting campaigns accordingly.  

What are the significant updates in the pending legislation?

• The law restricts the use of automated technology and prerecorded messages by requiring prior express written consent before making sales or marketing calls and removes exemptions for making calls without consent. This restriction even applies to calls made with an established business relationship and calls to consumers who are not on the Florida state DNC list. The definition of an auto-dialer under Florida law is broader than the Federal TCPA and includes “an automated system for the selection or dialing of telephone numbers or the playing of a recorded message.”
• The law includes a private right of action with potential damages as high as $1500 for each willful violation, or actual damages or $500, whichever is greater, for violations that are not deemed to be willful. Companies that are found to violate these rules may also be prohibited from calling activities in the state.
•  The law adds a presumption that any call to a Florida area code is a call to a Florida resident or a person in the state. 
• The law updates legal calling times from 8 AM—9 PM to 8 AM—8 PM.
•  The law sets a cap on the number of calling attempts at three attempts per 24-hour period.

How can I prepare for these changes?

• Decide whether your dialing platform is an auto-dialer under Florida law. The Florida definition of an auto-dialer is broader than the Federal standard and includes any “automated system for the selection or dialing of telephone numbers or the playing of a recorded message.”
• Make sure you are obtaining Express Written Consent prior to placing any calls to Florida area codes or persons in Florida. This includes ensuring that any purchased leads have adequate Express Written Consent for your business to call. Maintain records of Express Written Consent for at least five years from the last date the consent was relied upon to place a call.
• Update your calling times for calls to Florida area codes or persons in Florida from  8 AM—9 PM to 8 AM—8 PM. Keep in mind that Florida is a two-time-zone state when making these changes.
• Ensure that your dialer can cap the number of attempts to Florida area codes and persons in Florida to three attempts per 24-hour period. This may include ensuring that lists are appropriately de-duped to make sure that the same number coming in from various lead sources is not called more than three times in 24 hours.
• Document any changes made to your policies or procedures, including what changes were made and when they went into effect.

Please reach out to us at connect@compliancepoint.com if you have any questions about these changes or how CompliancePoint can assist your organization with managing your marketing compliance.